There's been talk about whether Sen. Hillary Clinton is disqualified from a position as Secretary of State by the Emoluments Clause:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ....

It seems to me that there are two questions regarding whether the Emoluments Clause to the U.S. Constitution (Art. I, § 6, cl. 2) renders Senator Hillary Clinton constitutionally ineligible for appointment as Secretary of State: (1) whether Senator Clinton is now ineligible for appointment; and (2) if Senator Clinton is ineligible for appointment, whether that ineligibility may be cured by the so-called “Saxbe Fix,” whereby the Secretary of State’s salary is reduced to the salary in effect before Senator Clinton’s current Senate term began.

I think it is beyond dispute that Senator Clinton is currently ineligible for appointment as secretary of State. I also believe that the better construction of the Emoluments Clause is that the “Saxbe Fix” does not remove this ineligibility.

The Emoluments Clause provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.” As I understand it, 5 U.S.C. § 5303 provides for an automatic annual increase in certain federal salaries, including the salary of the Secretary of State, unless the President certifies that an increase in salaries is inappropriate. The salary of the Secretary of State has increased during Senator Clinton’s current Senate term, which does not end until 2012. Therefore, under a straightforward application of the Emoluments Clause, Senator Clinton is ineligible for appointment as Secretary of State because the emoluments of that office “have been encreased” during Senator Clinton’s current Senate term, and this disability continues until the end of “the time for which [she] was elected, or until January 2013.

I do not believe it affects the analysis that the salary increase occurred as a result of an Executive Order or that the statute creating these quasi-automatic salary increases was enacted prior to Senator Clinton’s current term. By its plain language, the Emoluments Clause applies when the office’s salary “shall have been encreased,” without regard to exactly how it was increased. Indeed, an early proposed draft of the clause included language limiting it to an increase of emoluments “by the legislature of the U[nited] States,” and was later revised to encompass any increase in emoluments. It is worth noting that several Framers thought, without much explication, that the clause was too lax as initially drafted. The clause also does not require that a Senator or Representative have voted for the increase.

The more difficult question is whether Senator Clinton’s ineligibility for appointment may be cured legislatively through the “Saxbe Fix,” where Congress reduces the Secretary of State’s salary to a level at or below where it was when Senator Clinton’s current term began in 2007. The Saxbe Fix got its name because the Nixon administration sought to eliminate Senator William Saxbe’s ineligibility for appointment as Attorney General by reducing the salary of that office to the level that existed before Senator Saxbe’s appointment. Although there was some opposition on constitutional grounds (most interestingly by Senator Robert Byrd and then-Harvard Professor Stephen G. Breyer), the legislation passed and Saxbe was confirmed. Later, Lloyd Bentsen served as Treasury Secretary after “Saxbe Fix” legislation reduced the salary of that office to its level immediately before Senator Bentsen’s Senate term had begun.

It is my view that the Saxbe Fix [] fails to remove an ineligibility for appointment. I believe the Saxbe Fix is ineffectual based on the plain reading of the Emoluments Clause and is also contrary to the intent of that clause. The Emoluments Clause provides an ineligibility for appointment to an office the emoluments of which “have been encreased.” Even if the emoluments of the office are later reduced, it seems to me that they “have been encreased” during Senator Clinton’s current Senate term even if they are later decreased.

Professor Volokh suggested [in the e-mail requesting this response -EV] that the clause might be read so that the emoluments of an office “have been encreased” only if the salary at the time of appointment is higher than the salary at the beginning of the appointee’s congressional term. I do not think that is the best textual reading of the clause. The clause’s use of the past participle (I think that’s what it is) “have been encreased” focuses on acts prior to appointment, and not on where the office’s emoluments stand at the time of appointment as compared to some prior point in time.

This focus [on] a past act of increasing emoluments, rather than on the emoluments existing at the time of appointment suggests to me that the clause’s best reading is that an act of increasing emoluments renders members of Congress ineligible for appointment [to] the office until their respective congressional terms end.

In addition, one of the central theses of my law review article on the subject is that the purpose of the Emoluments Clause is disserved by the Saxbe Fix. The records of the federal constitutional convention indicate two purposes underlying the Emoluments Clause: (1) general anti-corruption, whereby Congress might conspire with the President to create offices, or to give existing offices exorbitant salaries, with the understanding that a Member of Congress would be appointed to the office; and (2) limiting the size, importance, and reach of the federal bureaucracy.

The general anti-corruption purpose of the Emoluments Clause might be served by ensuring that a Member of Congress does not get the benefit of any salary increases taking effect during his or her term. But the other purpose of the Emoluments Clause -– limiting the size and power of the federal government as compared to the states -– that purpose is disserved by he Saxbe Fix. The argument in favor of the Saxbe Fix focuses on the back end of the process, making sure the appointee does not benefit from a salary increase. But the purpose of the Emoluments Clause is furthered by the effect it has on the front end -– discouraging the creation of new offices or the increase in the salaries of federal offices by rendering Members of Congress ineligible for appointment, during their current terms, to any office created during their current terms or to any office the salary of which has been increased during their current terms. If, contrary to the Emoluments Clause’s terms, Congress can restore its Members’ eligibility for appointment by reducing the office’s salary, the Emoluments Clause ceases to serve its function as providing a constitutional disincentive for regular increases in the salaries of federal offices.

As they say, anyone wanting the full-blown version of my thought on the subject [which also includes a detailed discussion of the second rationale, "limiting the size, importance, and reach of the federal bureaucracy" -EV] should read the entire law review article I wrote, but this is the gist of it. I should also note that I am highly skeptical that a court would find anyone to have standing to challenge Senator Clinton’s appointment, so this is probably all just an academic exercise. And, I should add that, constitutional issues aside, I really have no position on Senator Clinton’s potential nomination other than my general view that a President should et the cabinet he or she wants.

Here's my very tentative thinking: I think the phrase "the Emoluments whereof shall have been encreased during such time" is ambiguous. It could mean "shall have been increased at least once," or it could mean "shall have been increased on net." If you're thinking about buying a computer, for instance, and you ask "Has the price of this computer been increased during the last year?," it seems to me quite possible that you would mean "Has it been increased so that it now costs more than it cost a year ago?," rather than "Has it been increased at all, even if the price hike was entirely rolled back a month later?" In fact, the "on net" reading strikes me as more plausible than the rival reading. If that's so, then the question is how you resolve the ambiguity, in light of

the purpose of the Clause,

the adjustment's being a cost-of-living adjustment that in practice prevents a real-world decrease in pay rather than being a real-world increase (irrelevant to the purely textual analysis that would apply if the text were clear but possibly relevant if the text is ambiguous and we have to resort to determining the purpose of the Clause), and

the Saxbe fix precedent, which dates back to then-President William Howard Taft and Secretary of State Philander C. Knox and has been reinforced by President Nixon and Saxbe, President Carter and Secretary of State Edmund Muskie, and President Clinton and Secretary of the Treasury Lloyd Bentsen, though it has been dissented from during the Reagan Administration, when the Administration's conclusion that the Saxbe fix was unconstitutional apparently helped lead to the selection of Robert Bork (and then Douglas Ginsburg and finally Anthony Kennedy) in place of Senator Orrin Hatch.

I don't know what the answer is given all that, but those are the things that I'd think about. (I should add that I also agree with John O'Connor that "constitutional issues aside, I really have no position on Senator Clinton’s potential nomination other than my general view that a President should et the cabinet he or she wants.")

Note also that Michael Stokes Paulsen's Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994) suggests that someone might indeed have standing to challenge the Saxbe fix, though only after the appointment. Here's what Prof. Paulsen says about Secretary Bentsen in particular, though it would likely apply to a Secretary of State as well:

In the Lloyd Bentsen case, however, I would not be too sure that there is no litigation risk. While a direct taxpayer or citizen suit might be foreclosed by the Incompatibility Clause precedent, the unconstitutionality of Bentsen's appointment could always be invoked as a defense to some coercive action or order by the Treasury Secretary, much as the unconstitutionality of the Independent Counsel statute was asserted (unsuccessfully) as a defense to prosecutions brought pursuant to that statute. Indeed, the Lloyd Bentsen Relief from the Constitution Act of 1993, like earlier such relief acts, authorizes private civil actions contesting the unconstitutionality of Bentsen's appointment by "[a]ny person aggrieved by an action of the Secretary of the Treasury" and provides for expedited consideration and appeal of such a lawsuit. A person adversely affected by a Treasury Department regulation promulgated by Secretary Bentsen -- say, for example, new Treasury or IRS regulations implementing President Clinton's tax hikes -- would have standing to sue to have such regulations overturned on the ground that the Secretary of the Treasury was illegally appointed. Of course, there would be many collateral issues of jurisdiction and remedy. (Could an aggrieved individual also obtain injunctive relief against Bentsen's continuance in office? Could Treasury simply reissue the regulations under the authority of an Acting Secretary and make them retroactive?) But the short point is that Bentsen's unconstitutional appointment can be made the subject of a lawsuit and that a finding of unconstitutionality could create a real mess.

Thanks for alerting me to this fascinating (and fun) issue! I've played in this particular sandbox before [as to Lloyd Bentsen], and am amused to see it return in slightly different form.

So, "Is Hillary Clinton Unconstitutional?" In a word, Yes -- or, to be more precise, a Secretary of State Hillary Clinton would be unconstitutional.

The Emoluments Clause of Article I, section 6 provides "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time." As I understand it, President Bush's executive order from earlier this year "encreased" the "Emoluments" (salary) of the office of Secretary of State. Last I checked, Hillary Clinton was an elected Senator from New York at the time. Were she to be appointed to the civil Office of Secretary of State, she would be being appointed to an office for which "the Emoluments whereof shall have been encreased" during the time for which she was elected to serve as Senator. The plain language of the Emoluments Clause would thus appear to bar her appointment ... if the Constitution is taken seriously (which it more than occasionally isn't on these matters, of course).

Are there any legitimate escape hatches to this constitutional bar? Let's consider them quickly. First, does the fact that the emoluments of the office were increased by executive order, pursuant to a general authorizing statute, take the case out of the Emoluments Clause rule? Plainly not. The clause is written in the delightfully ambiguous passive voice that we always discourage in our law students. "shall have been encreased ... by whom, exactly?!" The clause does not limit the application of its rule to direct statutory enactments.

In the world in which legislation may be accomplished by delegation of general quasi-lawmaking authority to executive branch officials, there is no difference in legal principle between a direct legislative enactment and an executive order pursuant to specific legislative authorization. If pay increases may be accomplished, legally, by executive order, then those increases in emoluments fit within Article I, section 6's rule. If those increases occurred during the time for which Hillary Clinton was elected to the U.S. Senate, they disqualify her, regardless of when the general statutory authorization for such increases was enacted.

But wait! Wasn't the (probable) purpose of the Emoluments Clause to prevent congressional self-dealing in the form of creation of offices (or increasing their emoluments) and hoping to profit thereby by being appointed to such office? And isn't that purpose plainly inapplicable here? Perhaps. But the content of the rule here is broader than its purpose. And the rule is the rule; the purpose is not the rule.

As I wrote in something of a sequel to Lloyd, if purposes were taken as rules, and if the meaning of texts "evolve" over time, then "thirty-five years of age" does not mean "thirty-five years of age" but stands instead for an evolving principle of maturity. In 1996, this would have meant that the lawful President of the United States was Strom Thurmond, not Bill Clinton. Michael Stokes Paulsen, Is Bill Clinton Unconstitutional? The Case for President Strom Thurmond, 13 Const. Comment. 217 (1996). So too, the fact that the Emoluments Clause catches in its snare the (possibly) blameless (for this at least) Hillary Clinton does not mean that its constitutional command can be ignored with impunity.

Then there's the infamous "Saxbe Fix" precedent, which I discuss in Lloyd. Couldn't Congress pass a repealing statute, or President Bush (or even President Obama) rescind the executive order, selectively, as to Hillary and make everybody happy? Nope: The clause forbids the appointment of someone to an office the emoluments whereof "shall have been encreased." A "fix" can rescind the salary, but it cannot repeal historical events. The emoluments of the office had been increased. The rule specified in the text still controls.

Unless one views the Constitution's rules as rules that may be dispensed with when inconvenient; or as not really stating rules at all (but "standards" or "principles" to be viewed at more-convenient levels of generality); or as not applicable where a lawsuit might not be brought; or as not applicable to Democratic administrations, then the plain linguistic meaning of this chunk of constitutional text forbids the appointment of Hillary Clinton as Secretary of State. I wouldn't bet on this actually preventing the appointment, however. It didn't stop Lloyd Bentsen from becoming Secretary of State. But it does make an interesting first test of how serious Barack Obama will be about taking the Constitution's actual words seriously. We know he thinks the Constitution should be viewed as authorizing judicial redistribution of wealth. But we don't know what he thinks about provisions of the Constitution that do not need to be invented, but are actually there in the document.

There is one last chance for Hillary. The Emoluments Clause provides that its rule applies to any senator or representative, "during the Time for which he was elected." Perhaps the rule of the Emoluments Clause does not apply to female U.S. Senators. It's an out-there argument, of course (Hillary and I both went to Yale Law School). But I think I would prefer even this (unpersuasive) pronoun pounce to the Saxbe Fix, or to ignoring the text of the Constitution entirely.

My views are somewhat different (and less certain), and I discuss them briefly at the end of the earlier post; but I thought that I would use this post to pass along Prof. Paulsen's views.

Several people have asked: Why isn't Vice-President-Elect Joe Biden presumptively barred from the Vice-Presidency by the Emoluments Clause (which we discussed in connection with Hillary Clinton's nomination to be Secretary of State)? Apparently the Vice-President's salary was raised during the term for which Senator Biden was elected (I haven't independently confirmed that is so, but I will assume it for purposes of this post). Would that mean that he can't hold that job, at least unless a Saxbe Fix temporarily lowers the salary to its earlier level?

No, because the Emoluments Clause says (emphasis added),

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ....

Senator Biden is not being appointed, but has rather been elected -- or, if you prefer, will almost certainly be voted into office as Vice-President on Dec. 15 by the Electors chosen by the voters of each state.

This status of the Vice-Presidency as an elective rather than appointive office is also reflected by the constitutional title — used in the Twentieth Amendment — of "Vice President elect." The Emoluments Clause applies only to appointed officers, just as does the Appointments Clause. ("[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.")

There's also something of a debate about whether the Presidency and the Vice-Presidency are considered "Office[s]" for the purpose of various constitutional clauses. But I need not engage that debate here, because the limitation to "appointed" offices settles the matter (though the debate might become relevant for a Vice-President who is nominated by the President and confirmed by the Senate pursuant to the Twenty-Fifth Amendment, in the event the elected Vice-President dies, resigns, is impeached, or becomes President).

or at least getting there: The Congress passed a bill, S.J. Res. 46, lowering the Secretary of State's salary to its pre-raise levels, thus allowing Senator Hillary Clinton to be appointed to the office. I have no reason to doubt that the President will sign it. Here's the text of the bill:

JOINT RESOLUTION

Ensuring that the compensation and other emoluments attached to the office of Secretary of State are those which were in effect on January 1, 2007.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. COMPENSATION AND OTHER EMOLUMENTS ATTACHED TO THE OFFICE OF SECRETARY OF STATE.

(a) In General- The compensation and other emoluments attached to the office of Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007, and ending at noon of January 3, 2013.

(b) Civil Action and Appeal-

(1) JURISDICTION- Any person aggrieved by an action of the Secretary of State may bring a civil action in the United States District Court for the District of Columbia to contest the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution. The United States District Court for the District of Columbia shall have exclusive jurisdiction over such a civil action, without regard to the sum or value of the matter in controversy.

(2) THREE JUDGE PANEL- Any claim challenging the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution, in an action brought under paragraph (1) shall be heard and determined by a panel of three judges in accordance with section 2284 of title 28, United States Code. It shall be the duty of the district court to advance on the docket and to expedite the disposition of any matter brought under this subsection.

(3) APPEAL-

(A) DIRECT APPEAL TO SUPREME COURT- An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection. Any such appeal shall be taken by a notice of appeal filed within 20 days after such judgment, decree, or order is entered.

(B) JURISDICTION- The Supreme Court shall, if it has not previously ruled on the question presented by an appeal taken under subparagraph (A), accept jurisdiction over the appeal, advance the appeal on the docket, and expedite the appeal.

(c) Effective Date- This joint resolution shall take effect at 12:00 p.m. on January 20, 2009.

I should note that, though some people think the Saxbe fix doesn't make the appointment constitutional, the bulk of recent precedent from the Legislative and Executive Branches supports its constitutionality, and the text strikes me as ambiguous on the subject. For more on this issue, including the text of the underlying constitutional provision, a bit about historical precedent, the views of some scholars, and speculation on whether the constitutionality of the appointment can be challenged in court, see here.

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed a lawsuit against newly sworn-in Secretary of State Hillary Rodham Clinton on behalf of U.S. Foreign Service Officer and State Department employee David C. Rodearmel, (Rodearmel v. Clinton, et al., (D. District of Columbia)). The lawsuit maintains that Mrs. Clinton is constitutionally ineligible to serve as Secretary of State and that Mr. Rodearmel cannot be forced to serve under the former U.S. Senator, as it would violate the oath he took as a Foreign Service Officer in 1991 to "support and defend" and "bear true faith and allegiance" to the Constitution of the United States.

Under the "Emoluments" or "Ineligibility" clause of the U.S. Constitution, no member of Congress can be appointed to a civilian position within the U.S. government if the "emoluments" of the position, such as the salary or benefits paid to whoever occupies the office, increased during the term for which the Senator or Representative was elected.

Specifically, article I, section 6 of the U.S. Constitution provides, "No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time." The text of the provision is an absolute prohibition and does not allow for any exceptions.

According to Judicial Watch's lawsuit, the "emoluments" of the office of U.S. Secretary of State increased three times during Mrs. Clinton's most recent U.S. Senate term. That term, which began on January 4, 2007, does not expire until January 2013, regardless of Mrs. Clinton's recent resignation. The lawsuit notes that Congress attempted to evade this clear constitutional prohibition with a so-called "Saxbe fix" last month, reducing the Secretary of State's salary to the level in effect on January 1, 2007. This maneuver, first used in the Taft Administration, has been more frequently used in recent years by both parties, allowing notably Republican Senator William Saxbe to become U.S. Attorney General in 1973 and Democratic Senator Lloyd Bentsen to become Treasury Secretary in 1993. A similar "fix" has been enacted for Senator Ken Salazar to join the Obama Cabinet as Secretary of the Interior.

Judicial Watch's lawsuit, however, points out that the legislation "does not and cannot change the historical fact that the 'compensation and other emoluments' of the office of the U.S. Secretary of State increased during Defendant Clinton's tenure in the U.S. Senate ...." The U.S. District Court for the District of Columbia is required to give expedited consideration to the lawsuit.

"This historic legal challenge should remind politicians of both parties that the U.S. Constitution is not to be trifled with," said Judicial Watch President Tom Fitton. "Mrs. Clinton is constitutionally ineligible to serve as the U.S. Secretary of State until at least 2013, when her second term in the U.S. Senate expires. We hope the courts will put a stop to these end runs around the Constitution and affirm the rule of law."

For our earlier posts on the subject, see here; as I noted there, I'm tentatively inclined to think that the Clinton appointment doesn't violate the Emoluments Clause, but I thought I'd link to the arguments of those who take the contrary view (as I also had earlier, quoting Prof. Michael Stokes Paulsen).

New Justice Department Opinion on the Ineligibility Clause (Sometimes Also Called the Emoluments Clause):

There's been talk about whether Sen. Hillary Clinton is disqualified from a position as Secretary of State by the Ineligibility Clause:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time ....

A Jan. 2008 executive order, promulgated pursuant to a 1990s cost of living adjustment statute, raised the salary of the Secretary of State, so the Ineligibility Clause question is in play. Congress's solution to the problem was the application of the so-called "Saxbe Fix" (named after a previous beneficiary of the approach): Lowering the salary of the office to the salary in effect before the appointee's current term.

A 1987 Justice Department Office of Legal Counsel opinion opined that the Saxbe Fix is unconstitutional, but a new opinion, released by the same office last week, reaches the contrary view: The Saxbe Fix, it concludes, cures the Ineligibility Clause problem. I tend to agree, for the reasons I tentatively suggested some months before, chiefly that "the Emoluments whereof shall have been encreased during such time" is most plausibly read as "shall have been increased or not" rather than "shall have been increased at least once." (As I suggested, if you're thinking about buying a computer, for instance, and you ask "Has the price of this computer been increased during the last year?," it seems to me more plausible that you would mean "Has it been increased so that it now costs more than it cost a year ago?," rather than "Has it been increased at all, even if the price hike was entirely rolled back a month later?")

Also, as I noted before, the bulk of recent precedent from the Legislative and Executive Branches — both Democrats and Republicans — supports the view that the Saxbe Fix is constitutional.

UPDATE: Judicial Watch, which is challenging Hillary Clinton's appointment, has put up all the documents — including their complaint and the motion to dismiss, as well as the OLC opinions — on their Rodearmel v. Clinton page.

The question, as you may recall, is this: Does "the Emoluments whereof shall have been encreased during such time" refer to a salary having been increased on balance during a time ("the Time for which [Senator Clinton] was elected")? Does it refer to the salary having been increased at least once even if it was later decreased? Or is the phrase ambiguous, as the linguists suggest?